OAG 92-137

August 31, 1992

R. Hanson Williams

Executive Director of the Personnel Board

28 Fountain Place

Frankfort, Kentucky 40601

Dear Mr. Williams:

You have asked whether members of the personnel board who were
on the board when it fired its executive director may participate
in the appeal filed by the executive director. We believe that
those members must disqualify themselves from participating in
the appeal.

When an administrative body conducts a quasi-judicial
proceeding, principles of due process apply. 1 AmJur2d,
Administrative Law �148. Due process requires that the tribunal
be uninfluenced by extraneous considerations, free from bias and
prejudice, and imbued with a desire to accord equal satisfaction
to the parties. 73A C.J.S., Public Administrative Law and
Procedure �136. An impartial tribunal is the sine qua non
of a full and fair hearing. Id.

In a related context we have said that a trial commissioner
who was an executor of an estate is disqualified from
participating in litigation regarding the estate. OAG 77-450.
That conclusion derives from the general principle that a judge
may not review a matter in which he participated as a
decision-maker. Poorman v. Commonwealth, Ky., 782 S.W.2d
603 (1989). That policy is firmly expressed in KRS 26A.015, which
states that a judge may not hear a case in which he has an
interest in the outcome, is a party to the proceeding, or is
likely to be a material witness.

We find no reason or logic that would allow a party to decide
a quasi-judicial appeal when it is clear that the same party
would be disqualified from hearing the case as a judge. The
impropriety is the same in either situation; if a judge is
disqualified from hearing a case because of personal involvement
in the case, then certainly an administrative officer would also
be disqualified from hearing a case because of personal
involvement in the case.

Since all the members who were on the board, including the
ones appointed after the executive director was fired, are
parties to the appeal and have an interest in the outcome, they
are disqualified from participating in the appeal. (This response
assumes that the appellant has not executed a written waiver. Small
v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981).)

With all the board members disqualified from the case, the
question arises how a tribunal should be selected to decide the
appeal. Although no statute addresses this specific question,
appointment power resides exclusively in the Governor and
consequently the Governor's office should appoint a tribunal to
decide the appeal. The size of the tribunal may range from four
(a quorum; KRS 18A.070) to seven members (the size of the full
board; KRS 18A.045).